R v Shen - [2007] NZCA 67

IN THE COURT OF APPEAL OF NEW ZEALAND

CA338/06 [2007] NZCA 67

THE QUEEN

v

HONG GANG SHEN

Hearing: 12 March 2007
Court: Robertson, Baragwanath and Venning JJ Counsel: A J Trenwith for Appellant
J M Jelas for Crown

Judgment: 15 March 2007 at 10.30 am

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe sentence of seven years is quashed and replaced with a sentence of five years’ imprisonment.

REASONS OF THE COURT

(Given by Venning J)

Introduction

[1] This is an appeal against a sentence of seven years’ imprisonment imposed on the appellant by Judge Field in the District Court at Auckland on a charge of
kidnapping. The appellant had pleaded guilty at a late stage.

R V SHEN CA CA338/06 15 March 2007

[2] The appellant was one of a number of offenders involved in the kidnapping of the victim who was a Chinese national. She owed money to some of the offenders including the appellant. She had borrowed money from the appellant and others to feed her gambling addiction. The apparent aim of the kidnapping was to have her repay her debts.

[3] On 30 August 2004 the victim was met at Auckland airport by the offenders, including the appellant. The victim was forced into a car and driven about Auckland for three hours. During this time she was forced to sign a contract regarding the payment of the monies she had borrowed. The appellant drove the car for part of the time. The victim was then taken to her home and, in the presence of the appellant, was forced to give her passport to another offender.

[4] The appellant then drove the victim to a hotel. The offenders checked into a room using the victim’s name and passport as identification. She was held captive in the room at the hotel from 30 August 2004 until 5 September 2004. She was told that she would be killed if she did not meet their demands. She was guarded by the appellant and others and was only fed one meal a day. She was also physically assaulted from time to time by two of the appellant’s associates and the appellant. The appellant was not responsible for the more serious assaults on the victim, but he did whip her with an electrical cord. The victim suffered cuts to her lip requiring stitching, bruising and welts to her arms and torso. She was forced to telephone her husband in Hong Kong to ask for money to pay her captors. During the course of one call she was able to tell her husband she had been kidnapped and where she was being held. He reported the matter to the Hong Kong Police who contacted the Auckland Police. That led to the victim being freed from the hotel room in the early hours of Sunday 5 September 2004. The appellant and two associates, Messrs Wen and Wang, were located in the foyer area of the hotel.

[5] In imposing seven years’…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Shen

Details

AGLC: R v Shen [2007] NZCA 67
Case: [2007] NZCA 67
Decision Date: 15 February 2007

CaseChat Overview and Summary

This appeal concerns the sentencing of Hong Gang Shen, who was convicted of kidnapping by the Auckland District Court. The primary issue before the Court of Appeal was whether the sentence imposed on Shen was manifestly excessive. Shen had pleaded guilty to his involvement in the kidnapping of a Chinese national, who was held captive and forced to repay debts owed to Shen and others. The sentencing judge imposed a term of seven years' imprisonment, starting from a ten-year base sentence, reduced by 30% for Shen's late guilty plea and cooperation with the police. The Court found that the starting point of ten years was appropriate, but the reduction for cooperation was insufficient. In light of the appellant's significant assistance, both past and anticipated, a total discount of 50% was deemed appropriate. Consequently, the appeal was allowed, the original sentence was quashed, and Shen was sentenced to five years' imprisonment.

Orders